Modern slavery operational guidance for prisons

Freshfields pro bono client the Anti Trafficking and Labour Exploitation Unit (ATLEU) has been successful in recent judicial review proceedings of the Secretary of State for Justice concerning the lack of prison policy and procedure on the treatment of trafficking survivors in custody. ATLEU argued that the lacuna in policy was unlawful.

The Secretary of State for Justice contested the case throughout the course of litigation until the evening before the final hearing, when he effectively conceded the matter on all substantive grounds. The parties agreed a compromise order, in respect of which the Justice Secretary has agreed to develop and implement relevant guidance within three months.

Prison guidance on trafficking survivors

The outcome is a success for ATLEU and survivors of trafficking across the UK. Whilst the Justice Secretary does not know how many survivors of trafficking are in prisons (partly because of the lack of policy and procedure, such as systems for recording such data), each year the Home Office receives requests to assess thousands of individuals for criminal-exploitation-related trafficking, some of whom have spent time in prison for alleged offences committed as part of their exploitation. Last year, the Home Office also reported a “clear upward trend” in the proportion of individuals on remand being referred to the Home Office for assessment as potential victims of trafficking.

The Justice Secretary will now use best endeavours to publish, by 31 October 2022, guidance that ensures that in HM Prison Service:

1. prison staff will now be properly notified of Home Office decisions that a prisoner in their custody is a potential/likely victim of trafficking;

2. prisons will have to carry out needs assessments of, and provide necessary support to, survivors of trafficking in their custody (as required under domestic and international law); and

3. prisons will now have to notify support agencies (eg the Salvation Army) prior to a survivor of trafficking's release so that the high risk of them being re-trafficked immediately on release can be managed more effectively.

Pro bono costs order

The High Court also ordered the Justice Secretary to pay £130,000 in pro bono costs in respect of Freshfields' time on the case, all of which will be donated to charity via to the Access to Justice Foundation. This is the largest pro bono costs order granted since this mechanism was introduced by section 194 of the Legal Services Act 2007 (more than double the previous highest).

Pro bono costs orders are important in the UK, not just for the charities they benefit, but because they should maintain the usual financial incentive for parties to concede cases if they expect to lose.

A success for trafficking survivors

For ATLEU the outcome is great news for survivors of trafficking. “This is a fantastic result,” said Victoria Marks, Solicitor and Director of ATLEU’s Anti Trafficking and Labour Exploitation Unit. “We are delighted that the litigation has led to a commitment by government to address the gap in desperately needed support for victims of modern slavery in prisons. We are hugely grateful to Freshfields for their amazing work on this case which will make a real difference to survivors of trafficking."

Craig Montgomery (partner) said, “I am delighted that following over a year of pre-action correspondence and litigation, the Government has agreed to address all of our client’s substantive concerns about the lacuna in guidance that has existed to date.  The outcome reflects a strong collaborative effort between the team at Freshfields, counsel at Matrix and Doughty Street, and of course, the solicitors at ATLEU who work with trafficking survivors on a daily basis.”

Paul Yates, Counsel and Head of Pro Bono at Freshfields, said: “This case has led to an important step forward in the systems protecting a particularly vulnerable subset of trafficking survivors. From a pro bono perspective, I was also delighted that we were able to secure this significant pro bono costs order, which will itself fund countless individuals to enjoy effective access to their legal rights.”

Freshfields Trainee Pamela Gorska said it was “particularly rewarding” to work on this case: “The outcome is far-reaching and set to improve the lives of numerous survivors of trafficking. From a development perspective, this case was a great opportunity to challenge myself: I was given the opportunity to develop my client skills and to complete substantial legal work for the team, including producing the first draft of documents filed at court.”

Freshfields has an established pro bono strategic litigation practice representing NGOs as litigants and interveners. Freshfields was awarded the Law Society’s Excellence in Pro Bono Award 2020 for its interventions practice, and also provides numerous other types of pro bono advice and representation in respect of a wide range of other projects and initiatives globally.  Last year, Freshfields provided over 80,000 hours of pro bono work for over 200 clients on a wide range of matters. For more information, contact $globalprobono@freshfields.com.